New York Teen Sexting and Pornography AttorneyIn New York, sending or receiving sexual images to a boy or girl under the age of 17 is a serious crime. It is also a crime to possess sexual depictions of a boy or girl who is younger than 16. It is important to note that these activities are still crimes and are prosecuted whether the person sending or receiving the images is also a minor or is an adult
Teen sexting is a felony in New York, and convictions of some crimes will result in mandatory Sex Offender designation, requiring registration. Registration is either for 20 years or life, and the requirements are burdensome, including:
- Frequent reporting of residence;
- Updating address within 10 days of a move; and
- Reporting to the police department for updated photographs
Failure to comply with registration requirements is a felony.
Disseminating Indecent Material to Minors in the First Degree
Disseminating Indecent Material to Minors in the First Degree, Penal Law Section 235.22, has two prongs:
- Disseminating graphic images of a minor depicting nudity or sexual conduct; and
- Luring (inviting or inducing) a minor to engage in sexual activity
A person commits the crime when he or she:
- Intentionally communicates with a minor;
- Knows the content of the communication that depicts or describes, either in words or images, actual or simulated nudity or sexual conduct; and
- Invites or induces the minor to engage in sexual conduct, sexual contact or to engage in a sexual performance
Sentencing for Dissemination of Indecent Material to Minors
Disseminating Indecent Material to Minors in the First Degree is a class D felony and may be punished by 2 1/3 to 7 years in jail for a first felony conviction. The crime may be considered a sexually motivated offense is the act was for his or her own sexually gratification. If that is the case, for a first felony conviction any jail sentence would be determinate between 2 and 7 years and followed by a period of post-release supervision between 3 and 10 years.
In addition, freedom of movement is severely restricted if the complaining witness was under 18 when the act occurred or the defendant is designated a level 3 sex offender. Any sentence may require a defendant to stay away from schools and places or people who are under 18 are present, barring prior approval.
There are many other sentencing options, including:
- A straight conditional discharge;
- Up to 5 years of probation; or
- A split sentence of up to 6 months in jail and up to 5 years of probation
However, no matter the sentence, Sex Offender registration is mandatory.
Defenses to Disseminating Indecent Material to Minors
One crucial defense to Disseminating Indecent Material to Minors is that a defendant “made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor.”
Diversion in Disseminating Indecent Material to Minors Cases
Since 2012, New York has offered a special diversion program for teenagers charged with Disseminating Indecent Material to Minors. This “education reform program” is available only to defendants who are 20 years old or younger, and only in cases where the victim / complaining witness is not more than 5 years apart in age from the defendant.
Diversion is available when the outcome of the case is an Adjournment in Contemplation of Dismissal (ACD), probation or a conditional discharge. Diversion is a much more preferable outcome than a jail sentence.
If you or your child have been charged with a teen sexting crime in New York, get advice from an experienced criminal defense lawyer before you take the next step. Contact us today.
Promoting Sexual Performance of a Child
The crime of Promoting Sexual Performance of a Child, Penal Law Section 263.15, is charged when a person produces, directs or promotes any performance that includes sexual conduct by a boy or girl who is less than 17 years old. To fully understand the elements of the crime, it is necessary to define certain terminology.
“Promotes” is defined broadly to include acts like lending, delivering, transferring, publishing, distributing, disseminating, or an offer to do any of the previous things.
“Performance” means any motion picture or photograph.
“Sexual conduct” means sex of any kind, whether actual or simulated, masturbation and mere exhibition of genitals. Thus, a single photograph or video sent by any means, whether text, email or social media, is covered under the law.
Promoting Sexual Performance of a Child is a class D felony and punishable by 2 1/3 to 7 years in prison for a first felony conviction. There are many other sentencing options, including:
- A straight conditional discharge;
- Probation for 10 years; or
- A split sentence of up to 6 months in jail and up to 10 years of probation or a 3-year conditional discharge
Like Disseminating Indecent Material to Minors in the First Degree, if the crime is a sexually motivated offense, the act was for his or her own sexually gratification, then the sentence will be more severe. If that’s the case, for a first felony conviction, a jail sentence would be determinate between 2 and 7 years and followed by 3 to 10 years of post-release supervision.
In addition, there are serious restrictions on one’s freedom of movement if the victim / complaining witness was under 18 when the act occurred or the defendant is designated a level 3 sex offender. A defendant may also be required to stay away from schools and places or people who are under 18 are present, without prior approval.
Sharing obscene material with a child is punished more severely if the sender asks the child to engage in sexual activity.
Disseminating Indecent Material to Minors and Other Sex Crimes
If Disseminating Indecent Material to Minors or Promoting Sexual Performance of a Child is charged on the basis of a recording of the sexual acts between the minor and the person charged, then the act(s) could lead to additional charges including Rape, Criminal Sexual Act and/or Sexual Abuse. Some of these crimes depend on the age difference between the defendant and the victim and/or an age threshold for the complaining witness.
Teen Sexting, Teenage Defendants and Youthful Offender Status
As noted above, even a teenager who sends or induces another minor to engage in sexual activity via an electronic form like texting or social media will be prosecuted. In other words, it is not a defense to say that both teenagers are under the age of adulthood. In New York, the age of criminal reasonability is 16, which is among the oldest in the nation. However, that does not mean that a boy or girl under the age of 16 will not be prosecuted. It simply means that a defendant aged 16 or older will be prosecuted in Supreme Court like other adults, while a person younger than 16 will be prosecuted in Family Court.
However, if a teenager who is between 16 and 18 is charged as an adult, Youthful Offender status may be available. The advantage to Youthful Offender status is that a teenager will not have the burden of a criminal record. If the status is granted, and it is within the discretion of a judge, then all records are sealed with the exception of extremely limited access by law enforcement and state agencies.
Youthful Offender status does not necessarily mean that the defendant will avoid jail time. However, in the Disseminating Indecent Material to Minors in the First Degree and Promoting Sexual Performance of a Child cases, the class D felonies become class E felonies if a person is adjudicated as a Youthful Offender. That means that the potential jail sentences are shorter and registration to the Sexual Offender Registry is not required.
Teen Sexting and Federal Law
The acts described above and other, similar acts may also give rise to federal criminal charges. In particular, federal law makes it a crime to use a computer to send, receive, distribute or reproduce any depiction of a minor engaging in sexually explicit conduct. The federal sentences for analogous crimes in New York are far harsher with some requiring a mandatory minimum prison sentence even for a first offense. However, the Federal Juvenile Delinquency Act (FJDA) provides that whenever possible, juveniles should be prosecuted in state rather than federal courts. Therefore, prosecution under federal law may be unlikely for minors.
The Consequences of Teen Sexting Can Be Serious – Talk to an Attorney Today
Teen Sexting allegations can carry lifelong consequences, even when the act involved nothing more than a teenage boy or girl sending an explicit photo of himself or herself to her teenage friend. If you are facing charges or your child has been accused of one of the above crimes, you can’t afford to leave the outcome to chance or hope that the prosecutor or judge will be sympathetic.